s.643 application for relief in respect of termination of employment

Appeal - termination of employment - whether error in decision - provocation - standard of proof - Workplace Relations Act 1996 ss.120, 649(1), 652(3).

[1] This is an appeal, for which leave is required, by Mr Robert Budd (the appellant) against a decision and order by Commissioner Williams on 13 July 2007 dismissing an application by the appellant for a remedy in relation to the termination of his employment by Dampier Salt Limited (the respondent). [1] The appellant's application was made under s.643(1) of the Workplace Relations Act 1996 (the Act).

[2] The respondent terminated the appellant's employment summarily for misconduct. The respondent alleged that the appellant had made a physical attack on a co-worker. The appellant challenged the termination on the basis that it was harsh, unjust and unreasonable. In particular he contended that his actions were not serious enough to justify the termination of his employment. The Commissioner made a number of findings of fact about the nature of the incident in question and found that the termination was not harsh, unjust or unreasonable. There are three grounds of appeal. The first is that the Commissioner made errors of law in dealing with the question of provocation. The second ground of appeal is that the Commissioner incorrectly applied the principle in Briginshaw v Briginshaw [2] (Briginshaw). The third and final ground, as developed on the hearing of the appeal, is that the Commissioner made a number of erroneous findings of fact and that the exercise of his discretion miscarried. Each of these grounds relates to the findings the Commissioner made concerning the appellant's conduct and the significance the Commissioner attached to that conduct.

[3] The appellant is a man of Aboriginal descent. He is 54 years of age. The respondent mines and exports solar salt. The appellant commenced employment as a plant operator at the respondent's Port Hedland operation in March 2003. The conduct in question took place in the crib room on the evening of 28 December 2006. It is common ground that the appellant was sitting in the crib room with two other employees, Mr Ytting and Mr Lord, and a fourth employee, Mr Melehan, was in the adjacent kitchen. The television was on and a news item was showing images of Aboriginal people causing a disturbance outside a court house. The witnesses differ in their accounts of what then occurred. It is clear enough that Mr Ytting made a comment in relation to the scene depicted on the television. Precisely what he said was disputed, although there is general agreement about the nature of the comment. In response to the comment the appellant physically and verbally reacted towards Mr Ytting.

[4] The appellant's version of the incident is that Mr Ytting said: "Fucking bunch of fucking ferals," whereupon he, the appellant, got out of his chair, grabbed Mr Ytting's shirt to get his attention and said: "Fucking racist." When Mr Ytting said: "Let me go", the appellant did so. The appellant then immediately left the crib room.

[5] Mr Ytting's evidence was that he was watching a television news story about a court appearance involving two former Aboriginal footballers which included images of demonstrators outside the court yelling and swearing at the police. Mr Ytting then said: "You fucking idiots." Immediately after making this comment he heard the appellant say: "It's because they're black isn't it." At the same time the appellant came around in front of him, leaned forward and grabbed him by the throat with his right hand and clenched his left fist tightly. Mr Ytting said the grip on his throat restricted his breathing and his chair was forced back onto the two back legs. On Mr Ytting's version the appellant let him go and said words to the effect "I am not working with any racists." Mr Ytting addressed some further remarks to the appellant indicating that he had not meant the comment to be racist but was only referring to the poor behaviour of the demonstrators. The appellant would not listen and left the crib room almost immediately.

[6] Mr Lord, who was also present in the crib room watching television, gave the following evidence:

"Okay. Can you in your own words explain to the Commissioner what exactly happened?- In my words, we were watching TV, I was sort of diagonal as I usually do, because other people are in the room so I have my back towards them. A story came on about the Krakouer brothers and somebody was going to court, and outside the courthouse yelling and screaming, carrying on, Anthony Ytting said, oh, what a bunch of fucking idiots, or idiots. Bob Budd senior got up out of his chair, walked around the front sort of diagonal to Mr Ytting, grabbed him by the throat, he was pushed back against the table behind him, he was yelling something like "what did you say you prejudiced cunt and called him - because they're black, and said that a couple of times. And then he got - I got up and walked to the side of Bob, what did you mean, because I was just waiting for him to let go, I didn't want to - if it had have gone on any longer I would have had to - Bob's a big bloke. He then let Anthony go. He was very angry at the time. He walked away. Anthony got up out of his chair holding his neck, coughing a couple of times, and said to Bob, don't ever grab me around my throat again. Bob then started pacing back towards Anthony. I thought he was going to have another go at him but he didn't. He sort of like gathered his composure and stormed out of the room again, then came back and said to me whether I could drive him home. I said yes. And then we left."

[7] The fourth employee, Mr Melehan, did not give oral evidence. A statement he made shortly after the incident was tendered. The Commissioner did not attach any weight to the version in Mr Melehan's statement where it was in conflict with the evidence of the witnesses who were cross-examined.

[8] As can be seen there were differing accounts of what Mr Ytting said initially, the strength of the appellant's reaction and how the encounter concluded. There were also differing accounts of Mr Ytting's demeanour immediately after the incident. For example, one witness, a Mr Turner, said that after the incident Mr Ytting was laughing and joking and did not appear to be a person who had been roughed up.

[9] So far as relevant the Commissioner accepted the evidence of Mr Ytting and Mr Lord in preference to the appellant's evidence. In particular he found that the appellant had grabbed Mr Ytting by the throat rather than the shirt and that he did so with sufficient force to push him back onto his chair such that he was at risk of falling backwards but for the table behind him. He found that the seriousness of the incident was not diminished in any way by Mr Turner's evidence of Mr Ytting's demeanour after the incident.

[10] The Commissioner found that the incident constituted a valid reason for the termination of the appellant's employment, that he was notified of that reason and that he was given an opportunity to respond. He also gave consideration to other relevant matters including those specifically referred to in s.652(3) of the Act.

[11] The Commissioner considered whether the gravity of the appellant's conduct was mitigated by reason of provocation. For this purpose he was prepared to assume that the appellant's version of Mr Ytting's initial comment was correct. He noted that there was no evidence of previous events which would lead the appellant to conclude that Mr Ytting's comment was provocative and which might justify his reaction. He found that on an objective assessment the appellant's reaction was not a reasonable one. The Commissioner noted the evidence that the appellant was suffering from influenza and a hernia at the time, but found that those circumstances did not excuse the conduct. He also had regard to the appellant's length of service, but concluded that service of only three years was not relevant. We take this to be a conclusion that in the circumstances overall, service of three years was not a persuasive factor in the appellant's favour.

[12] The first ground of appeal assumes that the Commissioner's finding that the appellant had grabbed Mr Ytting by the throat is correct, but focuses on the issue of provocation. In particular it was contended that the Commissioner should have taken the view that Mr Ytting's remark was likely to provoke a man of Aboriginal descent and that the appellant's reaction although extreme was brief and caused no real harm to Mr Ytting and that dismissal was not justified.

[13] The Commissioner dealt with the provocation issue at some length and ultimately held that in the circumstances the appellant's response to Mr Ytting's comment was not a reasonable one. While reasonable minds might differ on such questions, that conclusion was clearly open on the evidence and provides a sufficient answer to the allegation that the Commissioner did not deal with the issue of provocation adequately. What needs to be shown is that the exercise of the Commissioner's discretion miscarried by reason of error. Nothing put under this ground has persuaded us that in this case there was an appealable error. That is sufficient to deal with the first ground of appeal.

[14] The second ground of appeal is that the Commissioner erred in the application of the principle in Briginshaw. So far as relevant, that case decided two things. The first is that where allegations are made in civil proceedings which, if proven, might found criminal liability, the standard of proof remains the civil standard. It follows that it is necessary that the court only be satisfied on the balance of probabilities. The second thing is that in such a case a proper degree of satisfaction is required having regard to the seriousness of the allegations. In the words of Dixon J., as he was: "The nature of the issue necessarily affects the process by which reasonable satisfaction is obtained." [3]

[15] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the High Court pointed out that care needs to be taken in applying what was said in Briginshaw. [4] Furthermore, it would be wrong, for example, to apply a standard of proof higher than the balance of probabilities.[5] Counsel for the appellant contended that the Commissioner failed to have regard to the seriousness of the situation for the appellant in making findings of fact as to what had occurred and in deciding that there were no extenuating circumstances for the appellant's behaviour.

[16] In relation to fact finding, the Commissioner analyzed the evidence with care. In making findings he indicated how the findings were reached, in particular why he rejected some evidence and accepted other evidence. There was no error in the fact-finding process. To the extent that this ground involves a contention that the Commissioner did not exercise the statutory discretion properly it should also be rejected. Briginshaw was a case concerned with the nature of findings about conduct. It is potentially misleading and unnecessarily complicated to attempt to apply Briginshaw to the exercise of judgement required once the findings about conduct have been made. Section 652(3) specifies the way in which the discretion is to be exercised and the matters to be taken into account. Loss of employment is a serious matter and applications for a remedy are to be dealt with seriously. That the Commissioner so regarded it in this case is clear from his decision. There is no basis on which to conclude that the Commissioner's approach to the fact-finding process or to the exercise of the discretion was erroneous because of anything said by the Court in Briginshaw. The second ground of appeal must be rejected.

[17] The third ground of appeal is a broadly based challenge to the Commissioner's findings. It involves a number of contentions.

[18] The first contention is that the Commissioner should have accepted the version of events contained in Mr Melehan's written statement. The statement was made at the request of a Mr Czubek, an employee of the respondent, immediately following the incident in question. The statement was tendered as an attachment to Mr Czubek's witness statement. Mr Czubek took statements from all of the relevant employees as part of the investigation which preceded the termination of the appellant's employment. Mr Melehan's statement indicates that from the kitchen he saw the appellant holding Mr Ytting by the shirt for a few seconds. Neither party called Mr Melehan to give evidence. The Commissioner made two relevant findings in relation to Mr Melehan's statement. The first was that Mr Melehan had only witnessed the tail end of the incident between the appellant and Mr Ytting. The second finding was that he would not accept the account of the incident in Mr Melehan's statement where it conflicted with the evidence of Mr Ytting and Mr Lord who had given sworn evidence and been cross-examined.

[19] The appellant contended that the finding that Mr Melehan only witnessed the tail end of the incident was an error. We disagree. It was an inference which was open on the face of the statement. It is only necessary to set out the relevant part of the statement.

"At aprox. 6.00pm, while waiting to start our pre-shift meeting. I was at the sink area getting a cold drink, leaving R. Budd, A. Lord and A. Ytting in the table/TV area. I heard a chair move suddenly and didn't think too much of it. I heard it again and had a look around the doorway to see what was going on. Then I saw R. Budd holding the shirt collar of A. Ytting at the table where he had been sitting. In the next couple of seconds, R. Budd had released his grip of A. Ytting, and said something along the lines of 'I don't have to work with blokes like you' and walked back to his table, grabbed his bag and started to walk out of the room."

[20] In relation to the second of the two findings concerning Mr Melehan, the appellant's counsel submitted that the Commissioner made an error in preferring the evidence of Mr Ytting and Mr Lord over the version of events in Mr Melehan's statement. According to that version, it was submitted, the appellant did not grab Mr Ytting by the throat but by the shirt. It was contended that the respondent should have called Mr Melehan and that, in light of its failure to do so, Mr Melehan's account was unchallenged and ought be accepted as accurate. As to this submission, it is by no means clear that Mr Melehan was in the respondent's camp rather than the appellant's. There is no reason to suppose that he was not equally available to the appellant and the respondent and certainly no evidence to the contrary. It seems likely that neither side saw it as advantageous to call him to give evidence. In the circumstances no adverse inference should be drawn against either party. [6] In strictness Mr Melehan's statement was not evidence at all. In those circumstances it was open to the Commissioner to prefer the version given by the eye witnesses who, it is to be inferred, were in a better position than Mr Melehan to see what was occurring in any event.

[21] The Commissioner made findings of fact by analyzing conflicting evidence, including the evidence given by the appellant, on a conventional basis. He was confronted with differing versions of the incident as to whether the appellant grabbed Mr Ytting by the shirt or by the throat. It has not been shown that the Commissioner's decision to accept Mr Ytting's version, corroborated by Mr Lord's, was unreasonable having regard to the nature of the allegations and the evidence.

[22] The next contention was that the conduct as found by the Commissioner did not constitute a valid reason for the respondent to terminate the appellant's employment. [7] This contention is based primarily on what were described as extenuating circumstances. They include not only the provocation alleged to be inherent in Mr Ytting's initial remark, but also the fact that the attack was of very short duration, only a few seconds, and that Mr Ytting suffered no significant or lasting injury. Other matters were also advanced. Accepting as we do the Commissioner's finding that the appellant grabbed Mr Ytting by the throat in such a way as to force his chair back and restrict his breathing, it was open to the Commissioner to find that there was a valid reason for the termination. This is so notwithstanding the matters advanced by the appellant in mitigation of the attack.

[23] The final contention was that in the circumstances overall termination of employment was harsh, unjust or unreasonable. The circumstances called in aid included the alleged provocation, the nature of the attack including its duration and severity, the fact that the appellant had symptoms of influenza and a hernia, the effect upon the appellant's employment prospects in Port Hedland, the diminution in his earnings and the consequent effect upon his family, his nearly 4 years of service and his good employment record. While all of these things are relevant, it seems to us that the Commissioner took them all into account, indeed he specifically mentioned most of them. There is no error apparent and this is not a case in which it could be concluded that the decision is clearly wrong or that there is a patent injustice. This contention also fails.

[24] We have rejected all of the grounds of appeal. In our view none of the submissions advanced on appeal, and we have dealt with the main ones, indicates appealable error. Nor is there any reason in the public interest why leave should be granted to appeal. We decline to grant leave.

E Hartley with K Peacock-Smith for Dampier Salt Limited.

[1] [2007] AIRC 519 and PR978427.

[2] [1938] HCA 34; (1938) 60 CLR 336.

[4] [1992] HCA 66; (1992) 110 ALR 449 at 339-450.

[5] Brinks Australia Pty Ltd v Transport Workers Union of Australia, PR922612, 18 September, 2002.

[6] Claremont Petroleum NL v Cummings and Another [1992] FCA 446; (1992) 110 ALR 239 at 259.

[7] Workplace Relations Act 1996, s.652(3)(a).

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